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Iran Deal – judgments based on the language of the public JCPOA

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The Joint Comprehensive Plan of Action (JCPOA) – the title of the nuclear agreement between Iran and six powers, among which the United States – presents a few obvious points have been missed in most news coverage of this plan of action.

First, the agreement is not a non-proliferation agreement. It is an agreement that approves limited proliferation of nuclear technology. This characterization means that the US and others states surrendered or abandoned their longstanding position of banning any Iranian nuclear program, peaceful or not.

It also is not a nuclear containment agreement. At most, it postpones some aspects of Iranian nuclear infrastructure development. In other areas, Iran can continue to develop and modernize to keep up with technology. At the end of 15 years at most, Iran has no more restrictions on its nuclear program, with the approval of the UN and the other powers, by implication.

This compromise of the longstanding programmatic ban for Iran is curious because that remains the US objective for North Korea. The US insists that North Korea, which already has nuclear weapons, must dismantle its nuclear program, not just its weapons program. That is the premise of the Six Party Talks.

The difference in the negotiating positions is even stranger because the Iranian and North Korean weapons programs appear to be essentially variants of the same program. The North Korean variant is more advanced. Nevertheless, North Korea has assisted Iran’s ballistic missile programs since the Iraq-Iran War. Iranians have been reported as observers at North Korean missile and nuclear tests. The cooperation continues as does the North Korean program.

The second point is that it is a very one-sided deal. It lacks mutuality. By an overwhelming margin the burden of performance is on the UN, the European Union and the US. Its economic implications far exceed its nuclear restrictions. From the Iranian viewpoint, the JCPOA is primarily an economic agreement.

In return for some reduction in the Iranian nuclear programs, the UN and the US will remove the entire architecture of sanctions imposed by any party on any Iranian party. In addition, they will allow Iran to buy and sell conventional weapons and they will help Iran get access to trade, technology, finance and energy. According to the text, this is one paragraph in which Iran “agreed” to the actions by the UN and the US.

One of the implications of this is that Iran stands to emerge quickly as a regional economic power. Using Germany as a model, that condition is far more enduring and consequential than a delayed nuclear program. Once Iran’s economy starts to rebound, it will be free from the threat of sanctions to ensure compliance. There is no credible enforcement mechanism.

A third point is that the text is a plan of action, as it is entitled. Significant by their absence in the text are the words “promise” and “agree” which are the cornerstones of enforceable agreements. The text uses the formulation that the parties “will” do things. Those could all be done independently or not. There is no bargain evident.

An enforceable agreement is an exchange of promises of performance. A plan of action implements those promises. The performance of one party is conditioned on the performance by the other party, by the language of the agreement. The terms of the JCPOA are independent.

This plan of action implements no agreement because no such document exists. An agreement can be implied from the language of the plan, but the language must establish a “meeting of the minds.”

Fourth, a strong argument can be made that there is “no meeting of the minds,” a classic term of contract law that is the basis for every agreement. The awkwardness of the structure makes clear that the intentions of the parties are not congruent and the goals are even farther apart.

Fifth, the JCPOA text contains no definition of terms, such as explanations for the various time terms. A plan of action requires some agreed definitions of terms. One plausible theory for a ten year time period, for example, is that Iranian strategists might have concluded that Iran faces no existential threat for at least a decade, as long as Iran did not provoke a regional nuclear arms race.

They also might have judged that after ten years Iran must be prepared for an even more uncertain strategic environment than the present. If this theory is accurate, Iran gave up little in return for a chance to be the regional economic hegemon. The emergence of an economically powerful Iran would alter strategic power relationships.

Finally, the six powers did not include a term requiring Iran to affirm or promise that it possesses or has access to no nuclear weapons now, in Iran or elsewhere. That seems to be a significant omission in crafting. If Iran already has nuclear weapons, the JCPOA would be a strategic victory for Iran.

Assuming Iran abides by the JCPOA to the letter, the JCPOA will empower Iran economically and that will shift the balance of power in the region, regardless of the nuclear program. The Iranians do well to celebrate.

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Middle East

Process to draft Syria constitution begins this week

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The process of drafting a new constitution for Syria will begin this week, the UN Special Envoy for the country, Geir Pedersen, said on Sunday at a press conference in Geneva.

Mr. Pedersen was speaking following a meeting with the government and opposition co-chairs of the Syrian Constitutional Committee, who have agreed to start the process for constitutional reform.

The members of its so-called “small body”, tasked with preparing and drafting the Constitution, are in the Swiss city for their sixth round of talks in two years, which begin on Monday. 

Their last meeting, held in January, ended without progress, and the UN envoy has been negotiating between the parties on a way forward.

“The two Co-Chairs now agree that we will not only prepare for constitutional reform, but we will prepare and start drafting for constitutional reform,” Mr. Pedersen told journalists.

“So, the new thing this week is that we will actually be starting a drafting process for constitutional reform in Syria.”

The UN continues to support efforts towards a Syrian-owned and led political solution to end more than a decade of war that has killed upwards of 350,000 people and left 13 million in need of humanitarian aid.

An important contribution

The Syrian Constitutional Committee was formed in 2019, comprising 150 men and women, with the Government, the opposition and civil society each nominating 50 people.

This larger group established the 45-member small body, which consists of 15 representatives from each of the three sectors.

For the first time ever, committee co-chairs Ahmad Kuzbari, the Syrian government representative, and Hadi al-Bahra, from the opposition side, met together with Mr. Pedersen on Sunday morning. 

He described it as “a substantial and frank discussion on how we are to proceed with the constitutional reform and indeed in detail how we are planning for the week ahead of us.”

Mr. Pedersen told journalists that while the Syrian Constitutional Committee is an important contribution to the political process, “the committee in itself will not be able to solve the Syrian crisis, so we need to come together, with serious work, on the Constitutional Committee, but also address the other aspects of the Syrian crisis.”

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North Africa: Is Algeria Weaponizing Airspace and Natural Gas?

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In a series of shocking and unintelligible decisions, the Algerian Government closed its airspace to Moroccan military and civilian aircraft on September 22, 2021, banned French military planes from using its airspace on October 3rd, and decided not to renew the contract relative to the Maghreb-Europe gas pipeline, which goes through Morocco and has been up and running since 1996–a contract that comes to end on October 31.

In the case of Morocco, Algeria advanced ‘provocations and hostile’ actions as a reason to shut airspace and end the pipeline contract, a claim that has yet to be substantiated with evidence. Whereas in the case of France, Algeria got angry regarding visa restrictions and comments by French President Emmanuel Macron on the Algerian military grip on power and whether the North African country was a nation prior to French colonization in 1830.

Tensions for decades

Algeria has had continued tensions with Morocco for decades, over border issues and over the Western Sahara, a territory claimed by Morocco as part of its historical territorial unity, but contested by Algeria which supports an alleged liberation movement that desperately fights for independence since the 1970s.

With France, the relation is even more complex and plagued with memories of colonial exactions and liberation and post-colonial traumas, passions and injuries. France and Algeria have therefore developed, over the post-independence decades, a love-hate attitude that quite often mars otherwise strong economic and social relations.

Algeria has often reacted to the two countries’ alleged ‘misbehavior’ by closing borders –as is the case with Morocco since 1994—or calling its ambassadors for consultations, or even cutting diplomatic relations, as just happened in August when it cut ties with its western neighbor.

But it is the first-time Algeria resorts to the weaponization of energy and airspace. “Weaponization” is a term used in geostrategy to mean the use of goods and commodities, that are mainly destined for civilian use and are beneficial for international trade and the welfare of nations, for geostrategic, political and even military gains. As such “weaponization” is contrary to the spirit of free trade, open borders, and solidarity among nations, values that are at the core of common international action and positive globalization.

What happened?

Some observers advance continued domestic political and social unrest in Algeria, whereby thousands of Algerians have been taking to the streets for years to demand regime-change and profound political and economic reforms. Instead of positively responding to the demands of Algerians, the government is probably looking for desperate ways to divert attention and cerate foreign enemies as sources of domestic woes. Morocco and France qualify perfectly for the role of national scapegoats.

It may be true also that in the case of Morocco, Algeria is getting nervous at its seeing its Western neighbor become a main trade and investment partner in Africa, a role it can levy to develop diplomatic clout regarding the Western Sahara issue. Algeria has been looking for ways to curb Morocco’s growing influence in Africa for years. A pro-Algerian German expert, by the name of Isabelle Werenfels, a senior fellow in the German Institute for International and Security Affairs, even recommended to the EU to put a halt to Morocco’s pace and economic clout so that Algeria could catch up. Weaponization may be a desperate attempt to hurt the Moroccan economy and curb its dynamism, especially in Africa.

The impact of Algeria’s weaponization of energy and airspace on the Moroccan economy is minimal and on French military presence in Mali is close to insignificant; however, it shows how far a country that has failed to administer the right reforms and to transfer power to democratically elected civilians can go.

In a region, that is beleaguered by threats and challenges of terrorism, organized crime, youth bulge, illegal migration and climate change, you would expect countries like Algeria, with its geographic extension and oil wealth, to be a beacon of peace and cooperation. Weaponization in international relations is inacceptable as it reminds us of an age when bullying and blackmail between nations, was the norm. The people of the two countries, which share the same history, language and ethnic fabric, will need natural gas and unrestricted travel to prosper and grow and overcome adversity; using energy and airspace as weapons is at odds with the dreams of millions of young people in Algeria and Morocco that aspire for a brighter future in an otherwise gloomy economic landscape. Please don’t shatter those dreams!

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Middle East

Breaking The Line of the Israel-Palestine Conflict

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The conflict between Israel-Palestine is a prolonged conflict and has become a major problem, especially in the Middle East region.

A series of ceasefires and peace negotiations between Israel and Palestine that occurred repeatedly did not really “normalize” the relationship between the two parties.

In order to end the conflict, a number of parties consider that the two-state solution is the best approach to create two independent and coexistent states. Although a number of other parties disagreed with the proposal, and instead proposed a one-state solution, combining Israel, the West Bank, and the Gaza Strip into one big state.

Throughout the period of stalemate reaching an ideal solution, the construction and expansion of settlements carried out illegally by Israel in the Palestinian territories, especially the West Bank and East Jerusalem, also continued without stopping and actually made the prospect of resolving the Israeli-Palestinian crisis increasingly eroded, and this could jeopardize any solutions.

The attempted forced eviction in the Sheikh Jarrah district, which became one of the sources of the conflict in May 2021, for example, is an example of how Israel has designed a system to be able to change the demographics of its territory by continuing to annex or “occupy” extensively in the East Jerusalem area. This is also done in other areas, including the West Bank.

In fact, Israel’s “occupation” of the eastern part of Jerusalem which began at the end of the 1967 war, is an act that has never received international recognition.

This is also confirmed in a number of resolutions issued by the UN Security Council Numbers 242, 252, 267, 298, 476, 478, 672, 681, 692, 726, 799, 2334 and also United Nations General Assembly Resolutions Number 2253, 55/130, 60/104, 70/89, 71/96, A/72/L.11 and A/ES-10/L.22 and supported by the Advisory Opinion issued by the International Court of Justice (ICJ) in 2004 on Legal Consequences of The Construction of A Wall in The Occupied Palestine Territory which states that East Jerusalem is part of the Palestinian territories under Israeli “occupation”.

1 or 2 country solution

Back to the issue of the two-state solution or the one-state solution that the author mentioned earlier. The author considers that the one-state solution does not seem to be the right choice.

Facts on the ground show how Israel has implemented a policy of “apartheid” that is so harsh against Palestinians. so that the one-state solution will further legitimize the policy and make Israel more dominant. In addition, there is another consideration that cannot be ignored that Israel and Palestine are 2 parties with very different and conflicting political and cultural identities that are difficult to reconcile.

Meanwhile, the idea of ​​a two-state solution is an idea that is also difficult to implement. Because the idea still seems too abstract, especially on one thing that is very fundamental and becomes the core of the Israel-Palestine conflict, namely the “division” of territory between Israel and Palestine.

This is also what makes it difficult for Israel-Palestine to be able to break the line of conflict between them and repeatedly put them back into the status quo which is not a solution to the Israel-Palestine conflict.

The status quo, is in fact a way for Israel to continue to “annex” more Palestinian territories by establishing widespread and systematic illegal settlements in the West Bank and East Jerusalem. Today, more than 600,000 Israeli settlers now live in the West Bank and East Jerusalem.

In fact, a number of resolutions issued by the UN Security Council have explicitly and explicitly called for Israel to end the expansion of Israeli settlement construction in the occupied territory and require recognition of the sovereignty, territorial integrity and political independence of the region.

Thus, all efforts and actions of Israel both legislatively and administratively that can cause changes in the status and demographic composition in East Jerusalem and the West Bank must continue to be condemned. Because this is a violation of the provisions of international law.

Fundamental thing

To find a solution to the conflict, it is necessary to look back at the core of the conflict that the author has mentioned earlier, and the best way to resolve the Israeli-Palestinian conflict is to encourage Israel to immediately end the “occupation” that it began in 1967, and return the settlements to the pre-Islamic borders 1967 In accordance with UN Security Council resolution No. 242.

But the question is, who can stop the illegal Israeli settlements in the East Jerusalem and West Bank areas that violate the Palestinian territories?

In this condition, international political will is needed from countries in the world, to continue to urge Israel to comply with the provisions of international law, international humanitarian law, international human rights law and also the UN Security Council Resolutions.

At the same time, the international community must be able to encourage the United Nations, especially the United Nations Security Council, as the organ that has the main responsibility for maintaining and creating world peace and security based on Article 24 of the United Nations Charter to take constructive and effective steps in order to enforce all United Nations Resolutions, and dare to sanction violations committed by Israel, and also ensure that Palestinian rights are important to protect.

So, do not let this weak enforcement of international law become an external factor that also “perpetuates” the cycle of the Israel-Palestine conflict. It will demonstrate that John Austin was correct when he stated that international law is only positive morality and not real law.

And in the end, the most fundamental thing is that the blockade, illegal development, violence, and violations of international law must end. Because the ceasefire in the Israel-Palestine conflict is only a temporary solution to the conflict.

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